Article written by Haim Ravia and Dotan Hammer
In response to President Trump’s Executive Orders signed August 6, 2020, the Department of Commerce announced on September 18 various prohibitions aimed at eliminating access to WeChat and TikTok apps in the US, on national security grounds.
The Trump administration alleges that WeChat and TikTok each “collects vast swaths of data from users, including network activity, location data, and browsing and search histories. Each is an active participant in China’s civil-military fusion and is subject to mandatory cooperation with the intelligence services of the Chinese Communist Party.”
In response to the government’s prohibitions, the U.S. WeChat Users Alliance sought a court order to enjoin the ban on WeChat, claiming, among others, that the government’s ban violates the First Amendment to the U.S. Constitution which guarantees freedom of expression.
On September 19, 2020, the federal district court for the Northern District of California granted the motion for a nationwide preliminary injunction against the government’s ban on WeChat. The court concluded that the lawsuit raises serious questions going to the merits of the First Amendment claim that the government’s ban effectively eliminates the Chinese-Americans’ and Chinese-speaking community’s irreplaceable platform for online communication.
The court indicated that the “denial of speech that attends the complete ban of WeChat for the Chinese-American and Chinese-speaking U.S. users … burden substantially more speech than is necessary to serve the government’s significant interest in national security, especially given the lack of substitute channels for communication”.
Meanwhile, the Department of Commerce had decided to delay for just one week the initial set of prohibitions on TikTok which were originally scheduled to take effect September 20, 2020. The TikTok ban is based on similar national security concerns as the WeChat ban, yet the Department of Commerce announced the slight delay due to the proposed acquisition of TikTok’s US operations by Oracle and Walmart. Nevertheless, given the impending ban, TikTok also filed a motion for preliminary injunction and request for expedited briefing and a hearing with the federal district court for the District of Columbia.
On September 27, 2020, the court granted TikTok’s motion for a preliminary injunction for the Department of Commerce’s initial set of prohibitions, finding a likelihood that the prohibitions exceed the authority granted to the President under the International Emergency Economic Powers Act (IEEPA). According to the Court, TikTok offers a personal communication service and the exchange of information or informational materials, and the IEEPA expressly forecloses indirect regulations of such services. For the time being, the court left intact the second set of TikTok prohibitions which are scheduled to take effect on November 12, 2020.
CLICK HERE to read the federal court’s order granting the motion for a preliminary injunction against the Trump Administration’s ban on WeChat.
CLICK HERE to read the federal court’s order granting the motion for a preliminary injunction against the Trump Administration’s ban on TikTok.
